I am particularly pleased that OMB is going to testify today. As we all know, the President himself campaigned actively in support of the right of the people to have free and open access to the operations of their Government. Accordingly, we expect to learn from OMB today what initiatives they have taken and what oversight mechanisms they have instituted to insure that sunshine is a reality, not only in collegial agencies, but in all of our Government's daily operations.

COMMON CAUSE

Our first witnesses this morning will be Mr. David Cohen, president of Common Cause. As I imagine everyone is aware, Common Cause is one of the principal movers and shakers in helping us get the Government in the Sunshine Act passed. In a town which is noted for its collective short memory, it would be worthwhile to remember that sunshine had some formidable and articulate opponents. It was put in a simpler form in a law review article by Mr. Jerry Markham. He

wrote:

The hearings and debates and so-called sunshine requirements have tended to break down into two mobs of sorts, one desiring complete public access to governmental decisionmaking processes and another wishing only for as little public disclosure as will placate current public opinion.

He goes on to quote from the Pickwick Papers: "In deciding which of these two mobs to join, Mr. Pickwick's advice might be useful: 'Don't ask any questions. It's always best on these occasions to do what the mob do.' 'But suppose there are two mobs,' suggested Mr. Snodgrass. Shout with the largest,' replied Mr. Pickwick." I think the debate on sunshine was a lot more intellectual than that and in the end the legislation reflected a very modest position. Still, we ended up with the biggest mob, including Mr. Pickwick. The question is what, if anything, have we won.

Now that the clamor of the debate has died away I think it is time. to see what we have. Mr. Cohen, we would like to have you come on first, to find out from you what you think we have.

TESTIMONY OF DAVID COHEN, PRESIDENT OF COMMON CAUSE, ACCOMPANIED BY MS. ANNIE MCBRIDE, ASSOCIATE LEGISLATIVE DIRECTOR, AND ROBERT RODRIGUEZ

Mr. COHEN. Thank you very much, Mr. Chairman.

With me is Anne McBride, who serves as our associate legislative director, and who is our manager on the sunshine legislation.

Senator CHILES. Ms. McBride did a tremendous job in managing that issue and converting lot of people. That vote of 94 to 0 was sort of a magical vote, and sometimes it was quite illusive until it finally materialized. I think Ms. McBride had a lot to do with that.

Mr. COHEN. We've asked Anne McBride to top that in for a copy of the campaign finance reform legislation.

On my right is Robert Rodriguez who supervised the study that we did on the first 3 months of the implementation of the Sunshine Act. We very much appreciate the opportunity to be here, Mr. Chairman, and what I would like to do, with your permission, is ask that our

study and that my statement be made part of the record, and what I would like to do is summarize portions of the testimony.

Senator CHILES. We will do that. We appreciate your summarized testimony. It looks like we are going to have a long hearing and it gives us a little more time for the questions.

OVERSIGHT IS ESSENTIAL

Mr. COHEN. First, Mr. Chairman, I think it is absolutely welcome that you have begun the serious process of congressional oversight on implementation of the Sunshine Act. Too often laws are enacted but their implementation is ignored, and I think we all know enough about how law works to know that laws are not self-executing or self-enforcing. They need attention and monitoring and we have always believed the congressional oversight is essential if our Federal programs and laws are to work as intended.

I think the most important thing that can come out of these hearings is not only to determine how the Sunshine Act is working in its early stages, to send a forceful signal from this committee and from the Congress that you are serious about agency compliance with the letter and spirit of this law.

COMMON CAUSE STUDY

What I would like to do, Mr. Chairman, is summarize the results of our study which was based on a survey of the number and status of meetings held by the 47 agencies covered by the act during the first quarter.

Our survey found that 39 percent, 232 of 591 meetings held during the quarterly period study were entirely closed to the public. Also 24 percent or 143 of 591 meetings held during the quarterly period were partially closed to the public. But only 37 percent or 216 of these 591 meetings held were fully open to the public.

Exemptions relating to financial information accounted for 38 percent of the exemptions used to close meetings.

The statistics are plainly disturbing and I think they establish presumptively that there are serious problems with the agencies `implementing the Sunshine Act.

The fact is, it is not working as Congress intended it to and any time you have a situation in which five-eights of the meetings are either closed or partially closed for a law that intended open meetings, it is a serious problem and the fact that this is the way it began, it is important to nip it so that we change the course or direction, and that this committee can play a role in teaching the agencies how to live by a pattern and a habit of openness, and to change the old habit of when in doubt, close.

Our analysis of the use of the exemptions of the agencies closing meetings or portions of meetings indicates that the 10 exemptions to the openness rule were used to close entire meetings or portions of meetings 835 times.

While much of the public debate surrounding the need for exceptions in the Sunshine Act centered on the concern for national security and the unwarranted invasion of personal privacy, 38 percent of the

time the exemptions cited were those regarding financial information, and anlysis of the data reveals that matters of national security accounted for only 12 percent of the closed meetings while invasions of personal privacy were cited for closing only 9 percent of the time. The data indicates that the financial exemptions may well be used by agencies in a mindless manner, in a manner that is plainly overused. The Federal Reserve Board is a prime example, and as all of us know from the efforts of trying to achieve the law, the Federal Reserve Board was its most persistent opponent, probably the ultimate doomsayer. And Chairman Burns fought the law vigorously, and although the Federal Reserve Board is covered by the act the broad language of the exemptions dealing with financial matters mean that as a practical matter few of the Board's meetings would be open to the public.

Our own studies show that subjects dealing with office furniture and office renovation were closed under the guise of financial information and that is Chairman Burns and the Federal Reserve Board just thumbing its nose at this law.

The disproportionately large number of closed meetings justified by the Fed on the grounds that they are of a sensitive financial nature, that is hard to believe when you are dealing with office design and furniture.

What I would like to do, Mr. Chairman, is turn to our suggested recommendations.

THE NEED FOR EXECUTION ACTION

First, we believe that agency compliance with the Sunshine Act requires active Presidential leadership and initiatives as well as continuous congressional oversight. So far we do not see that Presidential initiative has been forthcoming. We think, as you stated in your opening remarks, that President Carter campaigned on a theme of openness and I think open meetings is the first step in building an affirmative antisecrecy policy in Government.

It can be implemented administratively at this point because of the law that the Congress passed. Those administrative innovations and initiatives have not been forthcoming.

Senator CHILES. I would certainly agree with you on that point.

As I recall there were times during the campaign when even Executive order was discussed as a method to open up Government. This happened at a time the sunshine bill had not yet been passed. I recall that statements were made that, whether the Sunshine Act was passed or not, Executive order could open up these meetings. Certainly now we recognize that, while we have covered the collegial bodies, so to speak, an Executive order could go much further by setting policy and could certainly implement sunshine much more effectively by setting some guidelines or setting some enforcement task group within the executive branch.

And while we always talk about the exceptions, no one seems to talk about the fact that an exemption under the act is not enough to close a meeting. In addition to finding an appropriate exemption, the agency must make a determination whether or not there is an over

riding public interest in opening the meeting in spite of that exemption.

And I would be very interested today in seeing how our agencies have dealt with that requirement. I think some strong language, from the Executive would be most helpful in getting the agencies to stop resisting open Government.

Mr. COHEN. The point I want to make before we get to the specifics of our suggestions, and we are not bashful about making some suggestions on what steps the President could take, is that here was a chance to actually carry out campaign promises with specific performance and it only takes the stroke of a pen, the convening of the appropriate people within the executive branch to take a clear signal and that signal just has not been coming and I think it is important that this committee let the executive branch know that they ought to begin performing specifically.

Senator CHILES. This committee hopes that signal is going to come today.

Mr. COHEN. Well, it is just unrealistic to expect that absent Presidential initiative that agencies which resisted the law are going to clamor to follow overriding public interest of openness.

In our judgment the President should issue a directive to the agencies affirming the administration's commitment to openness, establish standards of openness and require that agencies comply with not only the letter but the spirit of the act. The directive should recommend that agencies close meetings only when there is an overriding public interest in doing so.

The act allows an agency to close a meeting under certain circumstances, but does not require it to do so. An agency can decide even whether an exemption applies that the public interest is served by openness and justification for meeting in secret. One of the things the President could do very easily is say from the agencies affected by the bill. I want to have regular reports on how many meetings are open. and how many meetings were closed, and what your reasons are for closing those meetings, and what that overriding public interest is, if an agency does close a meeting, and that simple kind of a signal puts the appointees on notice that they had better shape up by learning how to operate in an open way.

Few agencies are following this approach.

We believe that they should be directed to do so by the President. The President should direct the agencies to include in their regulations such items as a broad definition of meetings, including committees and subdivisions.

Over and over again you get the sense that meetings are being held. but that they are not called meetings.

A requirement that notice be given 10 days in advance of a meeting. A provision permitting the use of sound recorders and photographic equipment.

And I think we have enough experience now to know that it is time to prohibit notational voting on substantive items, and it is important to require why a meeting is closed, the exemption and the purpose behind it, and the reason behind it ought to be listed in the Federal Register.

There ought to be a requirement that certification procedures in the General Counsel take place prior to holding of a closed meeting and there ought to be a procedure that would allow a citizen to request that a closed meeting be open, as well as a justification for the use of expedited closing procedures.

In our judgment the OMB has a critical role to play. Although agencies have been given flexibility in developing regulations, the act does not provide for any review of these regulations by any agency of Government to determine whether they adequately meet the act's requirements and spirit.

We urge the President to direct the Office of Management and Budget to review for the White House each agency's regulations to insure that they meet the high standards of openness.

OMB's approval of the regulation should be based on their compliance with the Presidential directive that I discussed earlier. Just asking OMB to do it absent the directive will just become a technician's game.

The point here is that policy ought to be established. The OMB ought to carry out the policy. That is why we need the directive, and then the responsibility ought to be fixed with OMB to review the other agencies' regulations.

The results of the review, including any recommended changes, should be made available to the public for comment and discussion.

On oversight hearings, as we stated at the outset, Senator, we believe that the oversight hearings that you have initated here are critical to the future of the Sunshine Act. We believe that every agency must be held accountable to Congress for its performance under the act.

We believe that there are several basic questions that must be answered to the oversight process. Are the exemptions being properly used? Do the exemptions need to be more narrowly written? Are agencies ignoring the presumption of openness? Is the expedited closing procedure being used properly by the appropriate agencies? Do the expedited closing procedures serve the public interest? I hope that we can learn today.

I know you will make an effort to hear from the agencies on why these meetings have been closed, what positive steps will be taken to change practices? And I think it would be useful as a sign of this committee's seriousness about this question that after these oversight hearings are completed, if the committee were to issue a report with specific recommendations and that degree of formality, has a way of putting public officials on notice and working at changing their current habits.

Included in our study is a model regulation design to implement the Government in the Sunshine Act. And that is part of what we asked to be submitted for the record. I hope that this can serve as at least a point of departure for showing that the job is doable.

In a real sense you have to refight the debate all over again. There are always those who will say that it can't work or matters will be paralyzed. It hink they don't get paralyzed from openness. They may get paralyzed from closeness but they surely don't get paralyzed from

openness.